Ethical Reflections on Bill 101

Human rights are more than legal concepts: they are in the first place ethical concepts. The rational basis on which human rights were defended was the ethics of justice, and the historical struggle to have them recognized by law was inspired by an ethical vision and sustained by ethical passion. It is not out of place therefore to reflect on Bill 101 from an ethical perspective.

The human rights recognized by international law belong to several "families". In the present context important is the distinction between personal rights (or civil liberties) on the one hand and collective rights to self-determination on the other. Both families of rights have been recognized by the United Nations. The Universal Declaration of Human Rights made by United Nations in 1948 dealt mainly with personal rights and made only brief references to collectives rights. When in the fifties and sixties the anti-colonial struggles of African and Asian nations took place, their political endeavour was supported by the international community. In 1966 the United Nations promulgated two international covenants on the collective rights of peoples, in particular on their rights of political, social and cultural self-determination.1 The nations that claim this right and create their own societies are held to respect the Universal Declaration of Human Rights, including the civil liberties of their members and the rights of the minorities.

These documents of international law embody an ethical double-principle: a people or nation is ethically entitled to struggle for its political, economic and cultural self-determination, but in doing so it must respect the rights of individuals and of minorities. This double-principle, it is worth noting, was recognized in a pastoral letter of the Quebec bishop. Acknowledging the emerging consensus of the international community, the bishops recognized Quebec’s right to self-determination: but they added that a nationalist movement is ethically acceptable only if it intends to protect the rights of minorities and looks forward to cooperative relations with the surrounding nations.2

Bill 101, la Charte de la langue française, introduced by the René Lévesque government, was a major political achievement of the Quebec people, correcting a previous injustice inherited from Quebec’s colonial past. Bill 101 made French the official language of Quebec society. Like every legislation of Affirmative Action that seeks to right historical wrongs, Bill 101 imposed certain limitations on the rights of previously advantaged groups, in this case the anglophone community and immigrants settling in Quebec.

It is interesting to note that the Quebec bishops published an ethical evaluation of Bill 101 that paid special attention to the changed situation of the linguistic minority. The bishops approved of the Bill's intention to "redresser l’équilibre entre la majorité et la minorité et faire du Québec une société foncièrement française."3 The moral justification for limiting somewhat the rights of the minority, the bishops argue, is that it is the correction of a previous injustice. At the same time, historical redress has ethical limits. The bishops were pleased that the White Paper the Lévesque government had published as an interpretative guide to Bill 101, specifically said that "l'anglais...aura toujours une place importante au Québec," that "(l’anglais) tient aussi à l’héritage culturel des Québécois," and that "les anglophones du Québec doivent garder leur language, leurs modes de vie et leur culture."4 The bishops remind the francophone majority never to forget that anglophones and "allophones" are Quebecers, members of the same political community and citizens enjoying the same rights.

Many members of the anglophone minority were unhappy with the Bill 101. Some of them made an appeal to the Supreme Court of Canada, arguing that the paragraph demanding commercial signs in French only, deprived them of their civil liberties. In December 1988, the Court decided that it was indeed the task of the Quebec government to protect and promote the French language, but that the means it employed in this endeavour had to conform to the Quebec Charter of Rights and that the paragraph in question went against the recognized freedom of expression. After a stormy debate, the Robert Bourassa government decided to invoke the "not-withstanding clause" and promulgate Bill 178 which offered only slight modifications of Bill 101.

A legal decision of a court is one thing, an ethical judgement is quite another. Can the Bill 101 and 178 be ethically defended despite the decision of the Supreme Court?

A group of anglophone Catholics, unhappy with Bill 178, asked the Quebec bishops to offer their ethical evaluation of the new legislation. The bishops replied to them with an appeal to the ethical double-principle mentioned above.5 The Bill is ethically justified A) because it corrects a previous unjust situation and protects French threatened by the overwhelming presence of English in North America and B) because the limitations of minority rights do not threaten the language nor the cultural life of the anglophone community in Quebec.

The McGill Reporter of January 18, 1989, contained brief responses to Bills 101 and 178 by 8 McGill professors, of which 4 recognized A) the need of francophone Quebecers to protect their language and cultural identity in North America and B) that the requirement for commercial signs in French only does not curtail the substance of the freedom of expression, a human right that protects primarily the freedom of dissent in political thought, legal interpretation, literature and the arts. The other 4 professors showed very little sympathy for Quebec’s struggle to protect its cultural and linguistic identity.

The ethical arguments in defence of the language legislation all have the same basic structure, namely the double-principle mentioned above. Laws that enhance collective rights at the expense of personal freedoms are ethical only if A) there are good and urgent reasons for these laws and B) if the imposed limitations are minimal, i.e. cause only inconveniences. The more urgent the reason, the greater the right to extend the limitations. Thus to protect the safety of society in times of war, governments justifiably restrict personal freedoms: yet even here the government must explain for each restriction of freedom the particular threat to society the restriction is meant to overcome. It is commonly held today that the decision of the Canadian government during the last war to dispossess and intern Canadians of Japanese origin was not ethically justified because there was no reason to fear that the Japanese-Canadian community was a threat to society as a whole.

This ethical double-principle is constantly applied in Canada. Thus the government restricts the freedom of expression for broadcasting and television stations by demanding a certain percentage of "Canadian content", because A) the Canadians programmes are threatened by the overwhelming presence of American culture and B) because the restriction does not substantially limit the freedom of expression. Thus the courts defend the rights of universities to introduce compulsory retirement, because A) institutions have the collective rights to assure their rejuvenation, and B) because the persons forced to retire suffer only inconveniences but no loss of civil liberties.

In the following I wish to apply this ethical double-principle to the sign legislation of Bill 101, examining A) the good and urgent reasons for it and B) the restrictions imposed on the linguistic minority.

Contents

A- Good and urgent reasons

1) Bill 101, la Charte de la langue française, is the fruit of a long historical struggle against colonial domination. It corrects a previous injustice.

2) The Bill is a symbol for the majority of Quebecers that their cultural identity has been secured.

3) The Bill protects the economic interest of the great majority since they are now able to work and do business in their own language and challenge the economic hegemony of the minority.

4) The Bill gives Quebec a French face symbolizing that it is a French-speaking, not a bilingual society. This symbol sends an important message to immigrants.

5) The French language remains threatened in Quebec, and this for several reasons:

I) because of the overwhelming presence of American culture and technology,

II) because English has become the lingua franca of the globe, due partly to international American influence and partly to the heritage of the British Empire in Asia and Africa,

III) because of Quebec's minority position in Canada, which thanks to recent massive immigration no longer sees itself as the union of two peoples.

6) The language of a small people living in the shadow of a large civilization is always in danger of becoming folkloric and losing its capacity to deal with all aspects of public and academic life. Quebecers remember the time, not so long ago, when the language they used in the field of the sciences was not their own. The need for institutions to protect and promote the language of a small nation is not easily understood by English-speaking North Americans who have never experienced the fragility of language, how quickly it loses its cultural competence and is reduced to communication in family and neighbourhood.

After showing the good and urgent reasons for Bill 101, let me turn to the nature of the restrictions imposed on the linguistic minorities.

B- No threat to the Anglophone community

1) The restrictives sign legislation does not substantially violate the freedom of expression which is destined to protect the pluralism of political, ideological and artistic expression and is only remotely related to commercial signs.

2) Anglophones in Quebec continue to do business in English. The restrictive sign legislation does not prevent anglophone merchants from advertising in English on radio and television and in newspapers, weeklies, neighbourhood publications and mailings. Department stores and local shops are not prevented from expanding among the English-speaking population.

3) Bill 101 does not threaten the continued existence of the historical institutions of the anglophone community, the schools, universities, hospitals, social welfare centres and community organizations. Because in the past the anglophone community in Quebec was wealthy and influential, it could create for itself a strong institutional presence that cannot be compared with the weak institutional presence of French-speaking minorities in the other provinces, dependent as they were on the generosity of their provincial government. The integrity of the Quebec anglophone community is not endangered.

4) Charles Taylor has argued that while the French language must be protected and promoted in Quebec, the sign legislation does nothing to enhance this language and is therefore trivial. In my opinion, the great philosopher underestimates the power of symbols. The French face of Quebec, created by the sign law, communicates an important message, important for those who have lived here and for those who just arrived. It is true, I think, that more important than commercial signs is the language used at work, and here the demands of the law are as yet not very demanding.

5) In my opinion French Quebecers are much too sensitive to the negative evaluation of the language in the press and in public opinion of English-speaking Canada. Because of the asymmetrical character of the Canadian confederation, because of inherited aloofness and hostility, and because English-speaking Canadians have no experience of a language that is in need of institutional protection, English-speaking Canadians with the best of will are usually incapable of understanding Quebec's situation and the importance of la Charte de la langue française. If Quebecers allowed this negative image to make them feel guilty, they would be irrational and possibly even endanger their cultural future.

6) Since understanding and good will are important for society and since personal ethics calls for the spirit of openness, the various institutions of Quebec society, including the government, must find words, symbols and actions to express their respect for the linguistic minority and the ethic communities and demonstrate that they are welcome members of this essentially French-speaking society.

4. "English... will always have an important place in Quebec," that "(English) also holds a place in the cultural heritage of Quebecers", and that "the English speakers Quebec must keep their language, their ways of life and their culture.", Ibid. p. 115